Jonathan Cardenas, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Cardenas is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the Salinas Valley State Prison. Respondent has answered, and Cardenas has not replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On December 24, 2007, Cardenas was charged with murder in connection with the March 10, 2007, killing of Gerardo Castillo Ramirez outside an apartment complex on Dana Drive. The information charged that the crime committed was one in which a principal personally and intentionally discharged a firearm and that the crime was committed for the benefit of a criminal street gang. The information further charged Cardenas with two prior felony convictions for which he served prison terms.

On May 14, 2008, Cardenas proceeded to jury trial with his co-defendants Isabel Irene Varela and Jesus Vasquez Trujillo.

On the evening in question, Castillo Ramirez and his two friends, Rolando Rodriguez and Daniel Ponce, had been drinking at a bar, Mexico Lindo, where they met Varela. The three men and Varela went by taxi from the bar to Dana Drive. According to the prosecution, Varela lured the three men to the apartment complex by telling them she would "party" with them there when she knew that Trujillo and Cardenas were waiting for them at the apartment complex and intended to rob the three men. Trujillo was armed with the murder weapon. When Varela and the three men arrived at the complex, she led the unsuspecting men into the courtyard where Trujillo and Cardenas attacked.

The prosecutor suggested that Cardenas struck Rodriguez on the head with a pry bar which was found at the scene. Rodriguez was hospitalized with a gash to the head that was consistent with a blow from such a weapon. After a struggle, Trujillo shot Castillo Ramirez as he attempted to flee.

Varela and Cardenas admitted in their testimony that they were present at the shooting. Varela said she accompanied the men to the complex unwillingly, forced by Trujillo to do so. The prosecutor did not dispute that Trujillo directed Varela but maintained that she had ample opportunity to cease participating if she had wanted to do so.

Cardenas pleaded self-defense and defense of others. He said he was expecting that Varela would bring only one person rather than three and that Trujillo would then buy methamphetamine from that person. According to Cardenas, Castillo Ramirez and Ponce were the aggressors, attacking Trujillo when he entered the courtyard. As Rodriguez moved to join the fight, Cardenas hit him on the head from behind. Cardenas denied that he used anything other than his fists. He testified that Trujillo ran to the street in an attempt to flee; that Castillo Ramirez caught him and continued to assault him; and that the gun was discharged in the ensuing struggle. Cardenas said that he remained behind in the courtyard at the time of the shooting and ran out the back onto a bike trail afterward.

According to the prosecutor, the defendants were all members of the Norteno gang and were seeking to victimize the men because they were members of the Surenos, a rival gang. The prosecutor argued that Mexico Lindo was a Sureno bar. Cardenas testified that Rodriguez shouted a Sureno gang cry before his companions supposedly attacked Trujillo. Cardenas therefore suggested that it was Rodriguez and his companions, not the defendants, who came to the scene intending to commit assault and robbery under the pretense of doing a drug deal. Although Rodriguez himself denied it, it was undisputed among the parties that Rodriguez had a small amount of drugs with him that night and that a nurse at the hospital disposed of them at his request.

At the time of the killing, three homeless persons were encamped in a carport across the street from the apartment complex. Two of them testified for the prosecution, and both supported the prosecution's version of the killing. Although they were unable to identify the shooter, they made clear that he was the aggressor and was not defending himself as Cardenas claimed.

Shortly after the crime, the police stopped a car as it reached Cardenas's home. Steve Young was the driver and Cardenas and Varela were passengers. All three were arrested. All testified that Young picked up Varela and Trujillo from the crime scene, dropped them off temporarily at the home of Young's girlfriend, returned to the crime scene to get Cardenas, picked up Varela and Trujillo again at the girlfriend's home, dropped off Trujillo at his sister's apartment, and eventually drove to Cardenas's home.

Cell phone records showed repeated contacts among Young, Trujillo, Cardenas, and Varela before and after the shooting. Young testified for the prosecution as part of a plea bargain after he was originally charged with murder and conspiracy. In return for a promise to testify truthfully, he pled guilty to being an accessory after the fact, with no prison sentence.

After the conclusion of trial, the jury convicted Cardenas, Varela, and Trujillo of first degree murder and found the additional allegations true. On September 9, 2008, Cardenas was sentenced to a total term of 51 years to life: 25 years to life for the murder, a consecutive term of 25 year to life for the gun use enhancement, and 1 year for a prison prior. The court stayed a sentence for the gang enhancement. The court also ordered Cardenas to pay $79, 030.01 in restitution, reserved determination of future expenses, imposed a restitution fine of $10, 000, and suspended a parole revocation restitution fine of $10, 000.

Through counsel, Cardenas appealed his conviction. He argued that: 1) the trial court erred in refusing to sever Cardenas's trial from Varela's; 2) the court erred in sustaining the prosecutor's reasons for excusing a Latina juror; 3) the court erred in failing to dismiss a juror who expressed doubt about being fair due to fears about gangs and guns; 4) the gang enhancements were not supported by legally sufficient evidence; 5) the court erred in admitting gang expert testimony and restricting cross-examination of the expert; 6) the court erred in failing to instruct the jury to view Young's testimony with caution; 7) the cumulative effect of the errors warranted reversal of his conviction; 8) his sentence constituted cruel and unusual punishment; and 9) the court erred in calculating his presentence credits. On March 11, 2011, the California Court of Appeal issued a reasoned opinion in which it modified Cardenas's judgment to correct the calculation of his presentence credits but otherwise affirmed his conviction in its entirety. Cardenas petitioned for review of the denial to the California Supreme Court, which summarily denied review.

Cardenas timely filed a Petition for a Writ of Habeas Corpus to this Court on May 16, 2012.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

Cardenas has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).

IV. DISCUSSION

Claim 1. Erroneous Denial of Severance Motion

Cardenas first argues that the trial court erred in denying his motion to sever his trial from Varela's trial. Cardenas contends that his severance motion was "based on grossly antagonistic defenses" and that "actual gross unfairness" resulted from the denial. The Court of Appeal recounted the following facts underlying Cardenas's motion:

Before trial, counsel for Cardenas filed a motion to sever Cardenas's trial from that of Varela. Trujillo's counsel joined in that motion, which the prosecutor opposed. At a hearing on the motion, Cardenas's counsel stated that, based on evidence presented at the preliminary hearing, it appeared that Varela was planning to offer a duress defense and that such a defense would be antagonistic to Cardenas's defense. He further stated, "the power of their duress defense is related in an inversely proportional manner to mine. [¶] The more my client looks like a violent criminal and a gang member, the stronger Mr. Ogul's [Varela's counsel's] duress defense...."

Cardenas's counsel then explained that his defense theory at trial "would be that this was a drug purchase gone bad that turned into a shooting that was self-defense. [¶] And so my defense theory in that regard would be directly contradicted by Ms. Varela's that this was a gang thing, and these guys were lured out there to exact gang vengeance, and she was forced to do so by my client and other gang members." Trujillo's counsel then stated that, for purposes of the court's ruling, "we would ask the Court to assume it would be the same defense."

The trial court ultimately denied the severance motion.

The appellate court subsequently rejected the claim:

Varela's duress defense undoubtedly was antagonistic to the defenses of Cardenas and Trujillo. Nonetheless, abundant evidence of both men's guilt, independent from that presented by Varela, was presented at the preliminary hearing, from which the court could conclude severance was not required.

...

As to Cardenas, Young testified that, at Cardenas's request, he picked Cardenas up near the scene and eyewitness Miller identified Cardenas in a photo spread as the man he saw who ran from the scene. Young also testified that, from what Cardenas told him on the phone before the shooting, Young assumed that "they were setting someone up to be robbed."

There was additional evidence relating to both men. Ponce and Rodriguez both described an unprovoked attack by the two men who arrived at the scene, and Rodriguez described someone patting him down as he regained consciousness. In addition, there was testimony from Steven Young and Detective McCoy that Trujillo, Cardenas, and Varela were Norteno gang members. McCoy also testified that Mexico Lindo was a Sureno bar.

In sum, there was strong evidence - apart from that introduced by Varela - that Varela, a Norteno gang member, took three men she met at a Sureno bar to a secluded place where Trujillo - armed with a gun - and Cardenas, both Norteno gang members, were waiting. There was additional independent evidence that Trujillo and Cardenas then assaulted all three men, that one of them attempted to rob one of the men, and that Trujillo fatally shot another one.

Thus, there was sufficient independent evidence against Cardenas and Trujillo to establish that it was not the conflict with Varela alone that demonstrated their guilt. We therefore conclude that the trial court did not abuse its discretion in denying the severance motion based on the facts as they appeared at the time the court made its ruling.

The United States Supreme Court has never held that a criminal defendant has a federal constitutional right to bifurcation. Spencer v. Texas, 385 U.S. 554, 568 (1967) ("Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure."); see also Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (reaffirming Spencer ). Therefore, a court may grant habeas relief based on a state court's decision to deny a motion for severance only if the joint trial was so prejudicial that it denied a petitioner his right to a fair trial. Zafiro v. United States, 506 U.S. 534, 539 (1993) (a court must consider whether "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence"); Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) ("The simultaneous trial of more than one offense must actually render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate.") (internal brackets and citation omitted).

Cardenas bears the burden of proving that he is entitled to federal habeas relief, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003), and he must establish that the prejudice arising from the failure to grant a severance was so "clear, manifest or undue" that he was denied a fair trial, Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999) (quoting United States v. Throckmorton, 87 F.3d 1069, 1071-72 (9th Cir. 1996)).

Although it does not appear that the Ninth Circuit has directly addressed whether due process may be violated where a trial court refuses to sever trials involving antagonistic defenses, the Second Circuit has answered the question in the affirmative where one of the co-defendants alleges that another co-defendant framed him. See United States v. Serpoosh, 919 F.2d 835, 838 (2d Cir. 1990), overruled by Zafiro, 506 U.S. at 538. In that case, "Both defendants gave detailed and mutually exclusive explanations of their conduct on the day of the arrest. The damage done was greatly enhanced by the sparring between counsel for the two defendants in which each characterized the other defendant as a liar who concocted the story to escape blame." Id.

The Second Circuit later concluded that the Supreme Court overruled Serpoosh in Zafiro, 506 U.S. at 538. See United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994). In any event, the defenses involved in this case are not as incompatible as the defenses employed in Serpoosh. Varela did not argue that she was not involved in the crime. Rather, this case involved defendants who committed a common crime involving common events and victims. Accordingly, the evidence produced at trial was admissible with regard to all the defendants. This fact reduced the possibility of prejudice to Cardenas. Moreover, as the California Court of Appeal correctly observed, strong evidence apart from any introduced by Varela was sufficient to demonstrate Cardenas's guilt. Under the circumstances of this case, Cardenas has not established that the state trial court's refusal to bifurcate the trial rendered his trial fundamentally unfair. Davis, 384 F.3d at 638.

Moreover, even if the court's refusal to sever the trials was error, Cardenas cannot establish that he suffered clear, manifest, and undue prejudice by the inclusion of Varela's duress defense in his trial because, as the appellate court notes, "the jury, in convicting Varela, indicated that it did not believe her defense and did not find her to be ...

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